Jared Fogle, the one-time spokesman for Subway sandwich shops and now convicted sex offender, is appealing his nearly 16-year sentence on child porn charges, by saying that just fantasizing about molesting children is not a crime.

Last year Fogle was convicted of receiving dozens of pornographic images and videos of sexually exploited children, but is now saying that since he didn’t actually produce any of the content he should have been given a lighter sentence.

The former pitchman adds that he never acted on his urges to have sexual relations with children under 16 years and that, too, should have helped lower his sentence.

Fogle accepted a plea deal in August of 2015 expecting at least five years in prison but was shocked when he was slapped with 15 years and eight months during his sentencing.

In his appeal Fogle insists that U.S. District Judge Tanya Walton Pratt abused her authority by handing him an even longer sentence than the 12 and a half years federal prosecutors had asked for. Fogle’s attorney, Ron Elberger, argued that the judge’s actions were unreasonable.

Even though Fogle was caught in a sting and convicted of possession of child porn and traveling across state lines to have commercial sex with a child, Elberger insisted Fogle was just “fantasizing.”

“The mere fact that someone’s fantasizing about a crime or committing a crime, even a crime of violence, is not itself a crime,” the attorney said at the appeal hearing. “It was all talk and no substance,” he added.

State prosecutors, though countered that his intent was not mere fantasy and constituted “solicitation.”

“That makes him more blameworthy,” Assistant U.S. Attorney Steve DeBrota said in defense of the conviction.

Despite his few months in prison, Fogle has already had a tough time of it. Earlier this year he was attacked and beaten in a prison brawl in the yard of the Federal Correctional Institution in Englewood, Colorado.

Follow Warner Todd Huston on Twitter @warnerthuston or email the author at igcolonel@hotmail.com